Thursday, July 21, 2016

Notes for NARUC

I have been privileged to speak at many previous NARUC meetings, and I am pleased I was invited to speak on two separate panels at the upcoming NARUC Summer Committee Meetings in Nashville. The two panels are “Internet Privacy: The Rules of Engagement” and “Perspectives on Chevron Deference.” The complete agenda is here.

The state regulatory commissions play an important role with regard to communications law and policy, so many of of the NARUC meeting attendees are “subject matter experts” on the topics discussed. That’s why I have found many of the NARUC panels on which I’ve participated, along with the audience’s comments and questions, useful in informing my own thinking.

What I want to do here is just offer a few thoughts – perhaps more in the nature of “thinking out loud” – as I prepare for the two panels. By no means do I intend what follows to be comprehensive in any way. Rather, it’s intended to help organize my own thinking, at least in a preliminary high-level “macro” way, and perhaps provoke your thinking too.

The FCC’s Privacy Proposal

Much has been written concerning how the FCC’s proposal, with more stringent restrictions on the collection and sharing of consumers’ data than those that apply to the so-called edge providers, would place the Internet service providers (ISPs) subject to the FCC’s jurisdiction at a competitive disadvantage. This is true, and it is not an outcome to be preferred when a sound rationale for such a disparate regulatory regime is lacking.

But I am not so much concerned about the ISPs’ competitive position as I am about overall consumer welfare. It is in this realm that I find the FCC’s proposal troubling. I think a close reading of the Commission’s Notice will leave you with the sense the agency insufficiently takes into account the value that consumers place on receiving relevant information made possible by targeted advertising which, itself, is made possible by the collection and use of consumer data.

Of course, it is true, as the Commission claims, that consumers value privacy. And they may have certain preferences regarding the privacy of certain personally identifiable information that may be collected by ISPs. But this is only one side of the two-sided equation. Consumers also value receiving targeted information that they want enabled by the collection and use of their personal data. And they value receiving such information without any payment of money or subscription fee. Stated differently, but to the same effect, consumers may prefer that the payment they make not be in the form of money, but in the exchange of information about themselves.

Here’s the nub of the matter: The reason the FCC’s proposal is so problematical is that it presumes, as the default position, that consumers prefer to broadly restrict the collection and use of their personal data, rather than to more narrowly restrict such use (sensitive information such as medical or financial information is subject to higher privacy expectations). To effect such a presumption, the FCC – flying in the face of the FTC’s substantial experience and expertise regarding consumer preferences and expectations – proposes an “opt-in” requirement for most consumer data, no matter the lack of sensitivity. This is why the FTC staff filed comments advising the FCC, politely, that its proposal may harm consumers.

Here’s what FTC Commissioner Maureen Ohlhausen, more straight-forwardly, had to say on this fundamental point in a June 8, 2016, address:

Consumers who wish to receive targeted advertising or to benefit from services funded by advertising are harmed by regulation that increases the difficulty of using information. As a result, if a regulation imposes defaults that do not match consumer preferences, it forces unnecessary costs on consumers without improving consumer outcomes. The burdens imposed by overly restrictive privacy regulation, such as broad opt-in requirements for non-sensitive data, may also slow innovation and growth, harming all consumers.

There is much more to discuss with regard to the FCC’s proposal. But what I’ve said here does seem to get to the core of one of its overarching defects.

Perspectives on Chevron Deference

As most readers know, the central holding of the landmark 1984 decision in Chevron U.S.A. v. Natural Res. Def. Council is this: When a statutory provision is ambiguous, if the agency's interpretation is "based on a permissible construction of the statute," the agency's interpretation is to be given "controlling weight." Chevron is one of the Supreme Court’s most widely cited cases and most widely discussed in law reviews. Given the Chevron doctrine’s importance to the administrative state, I’ve written a lot about Chevron myself. In other words, I’ve contributed my fair share to the diminishment of our forestry resources resulting from endless Chevron commentaries.

In one sense the doctrine is important because, as it is often argued, it facilitates the expansion of the administrative state by conferring considerable power on unelected agency officials. Remember: If a statutory provision is ambiguous, and the agency’s interpretation of the statute is “permissible” (or “reasonable” as stated elsewhere in Chevron,) then the agency’s interpretation is to be given “controlling weight” – not “due” weight, or “considerable” weight, or “lots of” weight, but controlling weight. Thus, when Chevron deference is applied, as it was throughout the D.C. Circuit’s recent Open Internet Order decision, it generally is outcome-determinative.

But Chevron is important in a more fundamental sense: It goes to the very core of the separation of powers embedded in the structure of the Constitution – in other words, the allocation of powers among the three branches, Congress, the Executive, and the Judiciary. As administrative law scholar Cynthia Farina stated in an early article, “recognizing that the choice of interpretative model is part of the large problem of reconciling agencies and regulatory power with the constitutional scheme, Chevron invoked the principles of separation of powers and legitimacy.”

Here’s the nub of what the Supreme Court said in justifying Chevron:


Judges are not experts in the field, and are not part of either political branch of the Government.…[A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices -- resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

In other words, the Court said, when Congress enacts an ambiguous statue, it implicitly delegates primary interpretive authority to the Executive Branch because the Chief Executive is politically accountable and judges are not. And, as the above quote from Chevron indicates, the Court gave a nod, as a secondary matter, to agency expertise.

Teaser Alert: At the NARUC panel, I am going to suggest why I think Chevron deference should be constrained, either by the Supreme Court revisiting the decision or by Congress adopting legislation regarding the review of agency decisions that alters the scope of the current doctrine. Perhaps, as an initial matter, to spur your thinking along lines receptive to what I intend to suggest, please consider the following points:


·      In Federalist No. 78, Alexander Hamilton said: “The interpretation of the laws is the proper and peculiar province of the courts.”
·      In Marbury v. Madison, Chief Justice John Marshall famously proclaimed: “It is emphatically the province and duty of the judicial department to say what the law is.”
·      The Administrative Procedure Act (APA), called the “constitution” of the modern regulatory state, provides that a reviewing court “shall decide all relevant questions of law, interpret . . . statutory provisions, and determine the meaning and applicability of the terms of agency action.” The APA also provides that the reviewing court shall hold unlawful agency action found to be “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Curiously, Chevron, a decision that has had a profound effect on the scope and operation of the modern regulatory state, did not cite or discuss the Administrative Procedure Act.

Consider how Chevron squares with the dictates of the Constitution’s separation of powers principles – at least as suggested by Hamilton and Marshall in the above quotes – and by Congress when it adopted the APA.

And, finally, because the Chevron doctrine is based primarily on a political accountability rationale, consider whether it makes sense for the deference doctrine to apply to multi-member bipartisan independent agencies like the FCC to the same extent as Executive Branch agencies like EPA – which, by the way, is the agency whose statutory interpretation was the subject of Chevron. I’ve suggested in two law review articles that Chevron should not apply, or apply with the same controlling force, to the independent agencies: “Defining Deference Down: Independent Agencies and Chevron Deference” and “Defining Deference Down, Again: Independent Agencies, Chevron Deference, and Fox.
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Well, this “thinking out loud” exercise has helped me organize my thoughts for the upcoming NARUC Summer Committee Meetings. Perhaps it will provoke your thinking – either out loud or completely silently – as well.

If you’re headed to Nashville, I hope to see you there!

Tuesday, July 19, 2016

Copyright Updates Needed to Fix Music Market Distortions

When markets experience dramatic change, laws addressed to older business models and technologies can distort or inhibit free market-oriented activities that are dependent on newer models and technologies. The market distortion problem is increased when laws left on the books are based on industrial policies favoring certain market segments that no longer exist.

Copyright law suffers from such market-distorting effects because many of its provisions are based on late 20th century conceptions of a marketplace in which Internet use was far less common and relied largely on slow dial-up service. This poses significant difficulties to copyright holders seeking to protect their property rights from infringement.

Also, certain copyright provisions apply different types of protections or different royalty rates to different types of services without any rational basis – instead of equal standards. Such shortcomings in the law adversely impact copyright holders in sound recordings by unfairly harming their ability to bargain for financial returns in licensing their music to different music delivery services. Copyright law needs updating to fix these distortions of the music market.

Highlighting one particular problem, a number of high-profile music artists – ranging from Taylor Swift to Paul McCartney to Trent Reznor – recently have leveled harsh criticisms against YouTube for hosting copyright infringing content and for lackluster anti-piracy efforts. Complaints have also been voiced about low revenues received from the site.

A report titled "How Google Fights Piracy" appears as a partial response to those criticisms. The report touts YouTube proprietary systems for digital rights management and for combating infringing uploads of copyrighted video and music content by its users. It also points to a claimed $3 billion in multi-year aggregate payments made to copyrighted content owners by YouTube for on-demand ad-supported streaming.

By itself, perhaps $3 billion may seem to be an impressive figure. But the shine wears off when one considers the larger context of annual music consumption and revenues. In 2015, on-demand ad-supported music streams generated only $385 million in sales revenues. More than 150 billion song streams generated only $227 million. These numbers fall short of the $416 million in revenues generated that very same year by 17 million vinyl record sales.

It is true that copyright owners in the sound recording and motion picture markets bargained with YouTube, granting permission for streaming of copyright content in exchange for revenues. However, copyright holders have pointed to the prevalence of infringement on user-upload sites such as YouTube and the inadequacy of existing copyright enforcement mechanisms. It's out of apparent necessity to secure returns, however meager, for their creative work – rather than no returns at all – that copyright holders consent to low rate deals with ad-based streaming services.

Meanwhile, copyright holders face constraints on financial returns from other music delivery platforms. Under copyright law's compulsory licensing system, subscription satellite and Internet radio services can transmit copyrighted sound recordings at an artificially low rate under Copyright Act Section 801(b). And broadcast radio stations are exempt from having to pay any royalties to copyright holders when they air copyrighted sound recordings.

Ultimately, assessments of fair financial returns to copyright holders in sound recordings relative to economic values offered by online streaming platforms should be determined through the free market. But the rules of the market have long since become outdated. Copyright law needs updating in a free market-oriented direction to reflect digital age realities.

Much of copyright law predates the rise of high-speed broadband, emergence of user-upload streaming sites, and the eclipse of CDs by digital downloads. Last-century copyright law supplies a backdrop in which copyright protection is uneven and in some cases inadequate to protect against online piracy and infringement. Copyright law must be updated to ensure that marketplace negotiations between copyright holders and music delivery services are not so weighed down by the threat of piracy and infringement. That also means copyright law must treat different music and media platforms equally unless there is a rational basis for treating them disparately. 

A needed update to copyright law should include at least three important reforms:

First, the notice and takedown system for combating infringing Internet postings of copyrighted content needs to be revamped. The system was established back in 1998, a time when user-uploading on streaming sites was nil. The proliferation of those sites as well as Internet users and web addresses generally has made the system increasingly time-consuming and costly for copyright holders to use in obtaining prompt takedowns of infringing content. Judicial rulings have also restricted the scope of available protections, thereby requiring copyright holders to file numerous, repeated, webpage-specific takedown requests with online service providers when infringement of specific copyrighted works are clearly known to be widespread on a given online platform or website. The burdens are especially pronounced for individual copyright holders. The notice and takedown system should include simpler, more streamlined options for addressing such widespread and repeat infringement.  

Second, satellite and Internet radio subscription services should receive equal treatment – not preferred treatment – under the copyright law’s compulsory licensing system. Compulsory licensing may be a less-than-ideal alternative to a truly free market system. But mandating special low rates under the Section 801(b) standard for satellite radio subscription services is unjustifiable. At the very least, the licensing rates should seek to approximate free market values. Thus, satellite radio subscription services should be subject to the same "willing buyer/willing seller standard" that governs other music delivery services.

Third, the copyright royalty exemption for broadcast radio should be eliminated. Broadcast radio should be treated like other music delivery services instead of given a free pass to play copyrighted sound recordings. Like other services, if broadcast radio stations wish to air copyrighted sound recordings, they should bargain for performance rights to do so – or short of that, pay royalties according to the "willing buyer/willing seller" rate standard.

One doesn't have to side with YouTube, satellite and Internet radio, broadcast radio stations, recording companies, music artists or other copyright holders to recognize that existing copyright law is distorting free market negotiations for delivering music content. Copyright law must be modernized to match the 21st century world of high-speed broadband and ubiquitous Internet user-upload services. Equal treatment of music delivery platforms and more effective tools to combat infringement are essential to putting copyright on a firmer free market-oriented footing. 

Wednesday, July 06, 2016

IP Licensing Is Essential for Software Creation

Today, the App Association (ACT) and the Global Intellectual Property Center (GIPC) hosted a lunch briefing regarding the essential role that IP licensing provides for software creators to deliver consumers timely products. Consumers often take for granted the many licensing agreements that are needed to provide the software in smartphones, personal computers, or video game consoles. For example, Ben Golant, Chief Counsel for IP Policy at the Entertainment Software Association, spoke about how video game developers, online video providers, and communication platforms need to license their IP to video game console companies so consumers can experience the same product across many devices.
Strong IP rights protections promote creativity, innovation, and investment by software creators and by artists and entrepreneurs throughout the entire economy. In the software industry and other creative industries, consumers, ultimately, are the beneficiaries of such creativity, innovation, and investment. 

Comcast and Netflix Agreement Is Pro-Consumer

The news that Comcast and Netflix have reached an agreement that will allow Comcast subscribers with X1 boxes to access Netflix content shows how the market is working to provide consumers with the content they want.

This development, and many other similar ones, demonstrate that there is no need for the FCC to intervene in the market by adopting new technical mandates for video navigation devices.

Will the FCC let the marketplace work, or will it continue trying to micro-manage competition? I don't know, of course, but I always hold out hope the agency will show some regulatory modesty.

New Netflix and Comcast Agreement Shows Market Innovation

On July 5, 2016, news broke that Comcast will enable consumers to access Netflix on their set-top boxes. This agreement between Comcast and Netflix is an example of how multichannel video programming distributors (MVPDs) are innovating their services to meet consumer preferences for online video.
In February 2016, the FCC issued a notice of proposed rulemaking which would mandate video devices to allow for 3rd party access to MVPD subscribers. However, these regulations would lock in old technologies and would not allow the market to develop into an app-based service, which will enable online platforms and third party content to reach consumers through an MVPD service. It is important that similar agreements occur in the form of market innovation so consumers can choose which services they value the most, not through top-down FCC regulations imposing unnecessary costs onto MVPDs. 

Saturday, July 02, 2016

Independence Day 2016

At the close of the Constitutional Convention of 1787, anxious Philadelphians reportedly gathered outside Independence Hall after the proceedings ended in order to learn what had been produced behind closed doors. A Mrs. Powel asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” Without any hesitation, Franklin responded, “A Republic, if you can keep it.”

Perhaps the story is apocryphal, but nonetheless it is a good one to have in mind on Independence Day.

Without doubt, Americans have faced far more trying times than those we face today. No need to recount them here. But during this election year, there is no doubt as well that many Americans are dissatisfied with the direction in which our country is headed and fearful about its future prospects. And very many – myself included – are dissatisfied with the choices we likely will have this election day to fill the highest office in the land.

The rule of law, the fabric that binds together our constitutional Republic seems strained. Take but this one prominent yet striking example: In 2014, President Obama rejected entreaties, as he had done many times before, to essentially rewrite the substance of the nation’s immigration laws through executive action. In doing so, he declared: “I am President. I am not king. I can’t do these things just by myself. We have a system of government that requires the Congress to work with the executive branch to make it happen.” Then, less than a year later, President Obama asserted authority to take executive action to do exactly what he previously had expressly declared he lacked authority to do. Just like an ancient English king – “just by myself” –exercising the royal prerogative.

What are we to make of such political maneuvering that smacks so much of an “ends justify the means” modus operandi or mentality?

In this environment, the rule of law is undermined. You can hear the echoes of Franklin’s admonition: “A Republic if you can keep it.”

More than any other single person, James Madison was responsible for the Constitution’s drafting. So, on Independence Day, it’s worth considering what this foremost Founder might think about our current state of affairs in the context of the constitutional Republic created at the 1787 Convention. A good starting point is Federalist No. 51, where Madison asked: “But what is government itself but the greatest of all reflections on human nature?” Madison supplied one answer to this famous rhetorical question immediately after asking it:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

In Federalist No. 10, Madison wrote darkly of the “ambition” of men, their “mutual animosities” and “unfriendly passions,” and, indeed, their propensity “to vex and oppress each other.” He recognized that both individuals and interests – or “factions” as he put – naturally would seek to gain the upper hand by aggrandizing their power. And relevant to this election year, Madison warned against “unworthy candidates” who practice “the vicious arts by which elections are too often carried.”

So Madison set about to devise a government that would take into account this understanding of human nature. To counteract the effects of faction and preserve popular government, he conceived a system of separate and diffused powers, a federalist system in which “ambition” would counteract “ambition.” Or, as he put it in Federalist No. 51, a plan “of supplying by opposite and rival interests, the defect of better motives. . . .”

But Madison understood that even though he and his Constitution-making colleagues had framed a government designed to provide the best opportunity for free institutions to survive the machinations of ambitious men, and even unworthy candidates, democracy’s survival ultimately depends on something more than the structural design laid out in a paper document. It depends as much on a shared understanding between our leaders and citizens that there are lines in our politics that should not be crossed, or else people will lose respect for the rule of law that undergirds the institutions created by the paper document.

Given Madison’s understanding of the dark side of human nature, what basis is there to hope that prudential lines in our politics will not be crossed and the rule of law will be respected, especially in times when passions run high? Madison rested his hopes on what he perceived to be a duality in our natures, the existence of a noble side to rise above, if need be, the dark side.  Thus, shortly after he wrote about the unfriendly passions and unbridled ambitions that drive men, he wrote in The Federalist No. 55:

“[S]o there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealously of some among us faithful likenesses of the human character, the inference would be that there is not sufficient virtue among men for self-government. . . .”

Along with the diffusion of powers built into the Constitution’s structure, it was Madison’s trust in what is sometimes called “republican virtue” (note the small r) upon which he rested his hopes. Back home in Virginia urging ratification of the proposed Constitution, he again emphasized republican virtue:

“I go on this great republican principle: that the people will have virtue and intelligence to select men of virtue and intelligence. . . . No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without virtue in the people is a chimerical idea.”

On this Independence Day, it’s worth taking time to reflect on Benjamin Franklin’s admonition: “A Republic, if you can keep it.” To keep it, we must demand that our leaders act with honesty, prudence, responsibility, and respect for the rule of law – in other words, with republican virtue.

And we must demand as much of ourselves as well.
PS – Best wishes from the Free State Foundation family to you and yours for a safe and happy Independence Day!


PPS – My previous Independence Day messages are here: 2007, 2008, 2009, 2010, 2011, 2012, 2013,  2014, and 2015.